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Thursday, April 30, 2009

Lines that cannot have come from a conservative's pen

Quoth Kathleen Parker (italics hers, boldface mine):

As a recovering obsessive-compulsive, the past 100 days have been a torture of quantification. How’s he doing SO far? Is he the change we’ve been waiting for? Is Barack Obama really a centrist, as so many (including I) had hoped? Or is he one of them dadgum fascist-Marxist-commie-Moozlems?!

Obama is who he said he is—a pragmatist. It just so happens that pragmatism under present circumstances demands/justifies/warrants what are rather socialist solutions. The president is in the unique position of being able to say with face straight and heart true: I’m not a lefty ideologue. It’s just that Republican leadership has left us in the sort of economic free fall that only Big Government can rescue.

Sister Parker, you're hopelessly lost. Put the pen down. If you ever want to be taken seriously again by anyone who genuinely is conservative — or who even understands conservatism as an abstract proposition — then you need to go back to first principles. (Hint: They may be found in many places, but they are emphatically not found in Das Kapital.) And then you need to study history, including recent history.

But right now, you're so far gone that you're incapable of embarrassing us, or further embarrassing yourself. You're just a disgrace, with all the grace and credibility of a loud fart in church.

But no. This isn't an isolated toot that just slipped out, this is a full-fledged attack that would have made John Belushi blush:

... But my truest sense of Obama is that he thinks hard about each issue and that his mind is open. He is still finding out how to be president, listening instead of talking; watching and measuring, as children from disrupted childhoods learn to do.

The task for conservatives is not so much to oppose the president, but to help him see. Show him a better idea and he will consider it....

Ms. Parker, your harmless savant, your open-minded savior, has just proposed and passed a budget that Columnist Kathleen Parker quadruples an already unconscionable federal deficit just for this year. And with his co-conspirators of the Democratic Party, he has committed us to a spending spree that, in constant dollars, exceeds what this country spent on World Wars 1 and 2, the New Deal, the Marshall Plan, and the Iraq War combined. This is what you call "listening instead of talking"?

If this is what he does when he's still "finding out how to be president," then God save the universe from what he'll do when he "grows up"!

Please, Ms. Parker, please stop. You're becoming like the drunk girl at the frat party with such a crush on the frat president that she's unaware there's still vomit in her hair.

Is there no genuine conservative in Ms. Parker's life who can mount a compassionate intervention?

Posted by Beldar at 01:32 AM in Current Affairs, Mainstream Media, Obama, Politics (2009) | Permalink | Comments (13)

Tuesday, April 28, 2009


The Obama Administration and the Democratic Party have just welcomed a hand grenade, sans pin, on board their bandwagon. Anyone who ever counts on Arlen Specter for anything is likely to be disappointed. There have been many precedents to prove this: The only thing Specter has ever been reliable at is being unreliable. Now there's a super-precedent.

As a legal concept, "super-precedents," of course, are a ridiculous figment of Arlen Specter's addled imagination. But Specter's latest display of craven opportunism has finally persuaded me that "ass-clown" is a legitimate compound word.

Posted by Beldar at 06:04 PM in Congress, Politics (2009) | Permalink | Comments (17)

Wednesday, April 22, 2009

NYT again misreports maximum potential penalty that could have been sought against surviving Somali pirate

U.S. Magistrate Judge Andrew J. Peck of the United States District Court for the Southern District of New York has ruled that the surviving Somali pirate captured by the U.S. Navy after attempting to hijack the M/V Maersk Alabama, Abduwali Abdukhadir Muse, will stand trial as an adult. In so doing, Judge Peck credited testimony yesterday from New York City Detective Frederick Galloway, who — according to the New York Times — "who went to Africa as part of an investigative team." Detective Galloway testified that

Mr. Muse, after giving different ages, said he had been untruthful, apologized and said he was “between 18 and 19.”

“He also said, ‘I’m sorry for lying to you,’” Detective Galloway testified. “He said, ‘When I pray again, I’ll ask Allah to forgive me for lying to you, and I won’t lie to you again.’”

Judge Peck rejected as "incredible" contrary testimony given by Muse's purported father (through an interpreter and via a telephone hookup to Somalia) to the effect that Muse is only 15 years old. As for suggestions that Muse was merely a passive follower of the other pirates, the NYT story reports:

Disputing his father’s portrayal of his son as an unwitting dupe, prosecutors say Mr. Muse conducted himself as the leader of the pirate gang, and was the first among them to climb aboard the Maersk Alabama on the morning of April 8 in the Indian Ocean off of Somalia.

He fired his gun at the captain, Richard Phillips, who was still on the bridge, and then entered the bridge with two other armed pirates, and demanded money, the complaint said.

In fact, the Department of Justice's sworn criminal complaint filed against Muse is considerably more damning as to Muse's overall role in these events than the NYT's summary. According to the complaint(caps in original):

MUSE entered the Bridge, and told the Captain to stop the ship. MUSE, who conducted himself as the leader of the Pirates, later demanded money from the Captain. MUSE and two other Pirates, each of whom was armed with a gun, then walked with the captain to a room on the Maersk Alabama that contained the ship's safe. The captain opened the safe and took out approximately $30,000 in cash. MUSE and the two other Pirates then took the cash.

And the complaint likewise disputes previous press suggestions that Muse had "effectively surrendered" by boarding the USS Bainbridge before Navy SEAL snipers shot and killed his co-conspirators (italics mine):

On April 12, 2009, MUSE requested and was permitted to board the USS Bainbridge. The other three Pirates continued to hold the Captain on the Life Boat. On the USS Bainbridge, MUSE continued to demand for himself and the other Pirates safe passage from the scene in exchange for the Captain's release. In addition, MUSE received medical treatment.

Muse wasn't surrendering, in other words, and hadn't "withdrawn from the conspiracy," but was instead continuing to convey threats that his co-conspirators would kill Captain Phillips unless all of the pirates, including Muse, were released and guaranteed their continued freedom.


This NYT story — like every other mainstream media report I've seen since the attempted hijacking and hostage-taking — again incorrectly claims that life imprisonment is the most severe penalty available for any of the crimes with which Muse could be charged. As I wrote last week, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment." The statute doesn't require that the defendant himself have committed the homicide, nor that the victim of the homicide be one of the hostages. Rather, as with many state felony murder laws, all that section 1203(a) literally requires is that the hostage-taking have resulted in "the death of any person" for its violation to become a capital crime punishable by death. The criminal exposes himself to this penalty by taking part in a crime which ends up getting anyone killed as a result, even if it's an innocent bystander killed by accident, or even if it's one of his accomplices and co-conspirators who's killed in a justifiable homicide by law enforcement officers.

Hostage-taking in violation of section 1203(a) is indeed one of the five counts with which Muse has now been charged. However, the DoJ did not see fit to include in the charging language for that count an allegation that the hostage-taking resulted in the "death of any person," so Muse appears to be at risk for nothing worse than a life sentence as the case presently stands.

Section 1203(a) is not a complicated or long statute, and it's simply inconceivable that the prosecutors were unaware that it permits capital punishment when the hostage-taking has resulted in the "death of any person." So we must assume that the decision not to to charge the crime in a manner that would permit the death penalty under section 1203(a) was a deliberate one.

Such decisions fall within the general realm of "prosecutorial discretion." Because prosecutors are responsible not only to do what's right but to do justice, not every crime that could be charged should be charged. And one may argue with a perfectly straight face that Muse's relative youth (even if, by his own admission, he wasn't below the age of 18) and poverty-stricken life, plus the fact that only bad guys got killed, were enough in the way of mitigating factors to justify the prosecutors' decision not to seek the death penalty. Were I in their shoes, I probably would have been inclined instead to leave that to the jury to decide. But I am not accusing these prosecutors of having abused their discretion; and indeed, in other respects, the complaint is commendably robust.

But I do think that the mainstream media ought to truthfully report that the death penalty could indeed have been sought by the Obama Administration. This isn't quite the "Wag the Dog" scenario I've been predicting. But Obama's spinmeisters have been quite aggressive in seizing this as an example of "Obama as Tough Father Figure." It's bad practice, but unfortunately common (verging on universal), for the mainstream media to aid and abet Obama in such exaggerations, and this is simply another example of that.


UPDATE (Wed Apr 22 @ 11:45am): It's hard to overcome the defendant's own confession as to his age in the best of circumstances, but from another report of yesterday's hearing, this time from the NY Daily News (h/t Althouse), we see that there were further problems with the defense team's contention that Muse is a minor (italics mine):

The judge called Muse's father, who said the suspect was his eldest son, born in November 1993, making him just 15.

Pressed further, the father said his fourth-born son was born in 1990 — and the judge ruled his testimony was not credible.

Muse's court-appointed lawyers said they will appeal the age ruling and also want to see if he's subject to Geneva Convention rules on international prisoners.

They said he was shackled and blindfolded for eight days and had not been given pain medication for his hand in 24 hours.

"He is extremely young, injured and terrified," said lawyer Deirdre von Dornum.

To which my first reaction is: Poor (probably intercontinental) wood-shedding of the father by defense lawyers? If your witness' story depends on the proposition that time flows backwards when you get close to the equator, he may have some credibility problems.

The initial "appeal" of the age ruling will be not to the Second Circuit, but rather to the United States District Judge under whose authority Magistrate Judge Peck is proceeding. Unless they can come up with a lot of new and better evidence to cast doubt on the defendant's admission to the NYC police detective, though, along with an explanation for why they didn't have that evidence yesterday (which may be less problematic, given the international nature of the case and their very recent engagement), defense lawyers are very unlikely to win that appeal. District judges tend to be pretty deferential to their magistrates' fact-findings.

Statements to the press like Ms. von Dornum's tend to blow up in lawyers' faces when the prosecution shows videotape of the "extremely young, injured and terrified" defendant threatening a hostage with an AK-47. By overplaying their hand, his lawyers are ultimately doing their client no favor. But a companion article, quoting a criminal defense lawyer not part of Muse's team, shows just how tone-deaf defense lawyers can be (italics mine):

"You've got an 18-year-old kid who has no education. He's as poor as they come, and he got caught up with these pirates," veteran defense lawyer Martin Geduldig said.

"In a sense, he's as much a victim as anybody else," said Geduldig, who is not involved in Muse's defense.

Friends and neighbors, any lawyer who makes that argument will forfeit all credibility with the jury and judge. If that's the best argument you've got, you should probably get your client's consent to plead him guilty on the best deal you can get, and then hope for whatever marginal sentencing leniency you may can find in the discretion of the court, if there's any to be found. Argue mitigating circumstances as hard as you can; but don't go over the top, which is where you are when you claim your client is "as much a victim" as the guy he shot at repeatedly, robbed at gunpoint, kidnapped and took hostage, beat up, and repeatedly threatened with death as part of a crime spree stopped only by the precision marksmanship of three Navy SEAL snipers.

UPDATE (Wed Apr 22 @ 1:30pm): And now the AP reports that Muse's mother insists that he's actually 16, but "'wise beyond his years' — a child who ignored other boys his age who tried to tease him and got lost in books instead." And the AP, once again, ignores the capital punishment angle.

Posted by Beldar at 09:39 AM in Global War on Terror, Law (2009), Obama, SCOTUS & federal courts | Permalink | Comments (7)

Sunday, April 19, 2009

Review: Beldar & kids see "Duplicity"


That's the one-word verdict of my son Adam on the corporate espionage thriller, Duplicity, which he, my daughter Molly, and I saw early this afternoon. Molly and I not only joined in that verdict, but concurred with Adam's degree of substantial satisfaction in pronouncing it.

This is a slow time of year at the box office, and today was one of those days when we'd decided to go to the movies with no clear intention as to what we'd see. If we'd arrived an hour later, we might have instead seen 17 Again, despite Adam's objection that its male lead, Zac Efron, has a distractingly truncated first name.

But "Duplicity" dives immediately into a twisting and turning plot — if you leave for five minutes mid-movie to get fresh popcorn, you'll pay a heavy price — and although its trailers and advertising (warning: noisy website) certainly led one to expect double-crosses and surprises, it has an adequate combination of freshness and misdirection to avoid obvious clichés or predictable plot kinks.

Theatrical poster for 'Duplicity' I began convinced that Julia Roberts had been miscast as the female lead in this movie: She looked all of her 41 years, and perhaps a few more. I suspect, in fact, that the filmmakers deliberately avoided the flattering makeup, wardrobe, and lighting that might have knocked a few years off her apparent age, because her actual age better fit the character she was playing — someone neither overly lush nor brittle, but of whom an unkind (and yes, sexist) westerner might still say, "That's a mare, not a filly, and she looked like she'd been rode hard and put up wet." Ms. Roberts is still a striking, sexy woman. But I don't think anyone would use the terms "girlish" or "wicked hot" to describe her in this movie — in contrast to, for example, Charlize Theron in The Italian Job. And Ms. Roberts was less glamorous than, say, a comparably mature Rene Russo opposite Pierce Brosnan in the 1999 remake of The Thomas Crown Affair.

Clive Owen I can take or leave, and I might have been more receptive to whatever on-screen chemistry he developed with Ms. Roberts if I hadn't already watched her and Rupert Everett's campy but sexless on-screen relationship in My Best Friend's Wedding three or four times on late-night cable/satellite channels. I'd seen, but almost forgotten, Mr. Owen's and Ms. Roberts' performances as romantic interests in 2004's Closer; but perhaps to the extent it was in my subconscious, that quirky film ended up diluting rather than intensifying their on-screen chemistry for purposes of this one. A British accent and a muscular and dark-haired chest make for interchangeable leading-men hunks these days — all of them, as far as I can tell, living off the glorious, reflected, but fading sort of charm defined by Cary Grant and Sean Connery. In any event, Mr. Owen ended up being good enough, and occasionally drolly funny. And Ms. Roberts ended up being better than I expected, delivering a somewhat low-wattage but nevertheless persuasive performance.

The supporting cast, however, was simply terrific — better than the leads, better than the directing, and better than the script. Tom Wilkinson and Paul Giamatti, as rival CEOs from "Equicrom" and "Burkett & Randle" (think Unilever and Procter & Gamble), very nearly stole the show from Mr. Owen and Ms. Roberts. Mr. Wilkinson's performance was as subdued and guileful as Mr. Giamatti's was spittle-flecked and trenchant, but both were entirely credible and compelling. Carrie Preston had a small part that she turned into pure gold, as did Kathleen Chalfant, but the whole cast shone — and did so without the sort of "Oh, it's my turn now, and aren't I precious!" mugging that I found offputting in films like Ocean's Eleven and its sequels.

In the pantheon of twisty films, this one wasn't remotely as good as The Sting — but then, if you only watch films that deservedly win Best Picture and six other Oscars (with nine total nominations), you're going to run out of entertainment pretty soon. My ultimate but simple test is whether I regret spending the money for the ticket after seeing a movie in the theaters — and I don't regret the price I paid for me, Adam, and Molly to see "Duplicity." It gets a solid "thumbs up" from each of us.

Will you suffer if you wait for "Duplicity" to come out on cable/satellite? No, probably not; and in fact, I'll almost certainly watch it again, TiVo'd so I can replay my favorite scenes and really count the clues, when it does. Even after seeing this movie, you won't quite know the ultimate corporate secret — the difference between creams and lotions — but if you're in the mood to go out for a movie during this season of slim pickings, you could certainly do worse than this one.


UPDATE (Sun Apr 19 @ 6:45pm): Mild spoilers follow, along with some real-world perspectives that are less flattering to this movie and to Hollywood in general:

Like almost every other Hollywood movie of the last forty years, this one treats the corporate world with near-complete disdain and paints with a ridiculously overbroad brush that has indeed grown tired and clichéd. I'm thoroughly sick of corporations being universally portrayed as wicked and lawless, indeed murderous. And gentle readers, I've been a courtroom lawyer defending many of the real-life analogs to those vilified in movies, and I've seen their privileged internal documents, so don't start trying to argue to me that these Hollywood hatchet-jobs are "fake but accurate" or that they're portraying some fundamental and universal truth about corporate America or the international corporate world. These movies are naïve and paranoid fantasies for the most part, grossly distorted and blown entirely out of proportion by Hollywood to serve their secular god of political correctness.

2007's Michael Clayton — by the same screenwriter/director who wrote and directed "Duplicity," Tony Gilroy — was just another ridiculous example of the same ridiculous genre: Every pesticide company in Hollywood movies is all about killing children and polluting the universe, never about increasing harvests to feed real-life starving children. Every pharmaceutical company in Hollywood movies is all about inflicting birth defects or horrible addictions on the sick and the infirm, never about actually curing them or improving the quality of their lives. But in the real world, if there is an "industrial community" on the face of the earth whose citizens disproportionately deserve horse-whipping for systematically lying and distorting the truth, it's the community whose local industry is motion pictures. Consider this Q&A in an interview in which Gilroy was discussing and describing "Duplicity" and his earlier films:

Your movies are fiction but based on facts — is that it?

I have a chance to get at the essential truth. I can show what's going on without being tethered to the facts.

May heaven spare us from liberal filmmakers who are "un-tethered to the facts" — that is, absolutely free to tell deliberate and egregious lies — but free to present their "essential truths." That was exactly the rationale used by propagandists for Hitler, Stalin, and Mao in their day, and that's still being used by propagandists for the Castro brothers, Kim Jong-il, and Hugo Chávez.

Although their intrigues skirt and sometimes cross the lines of what's legal, the "corporate bad guys" in "Duplicity" at least aren't into mass murder, though, so I suppose we can be thankful for small favors. In fact, some of the plot threads that are least convincingly tied up involve blown covers which apparently have no on-screen results — as if corporate espionage agents are routinely set free after being caught red-handed in activities that are indeed illegal and would indeed, in the real world, result in arrests and prosecutions.

My approving review of this movie is premised solely on its entertainment value. And in my original review, I discounted to zero its further contribution to Hollywood's mountains of lies about the corporate world. If I only went to see, or praised, new releases that depicted the corporate world fairly and accurately, I might as well delete the "Film/TV/Stage" tag from my blog and stop publishing reviews altogether. It's a shame that we live in a society in which "Duplicity" can earn even faint praise by only slightly exaggerating corporate competitiveness. But that indeed is the world in which we live, and that is the cognitive dissonance that Hollywood inflicts upon the world's citizens who watch its paranoid fantasies during their time off from real-world jobs working for the same companies whom Hollywood so ruthlessly demonizes (while ignoring, by and large, the real demons and villains of the world).

Posted by Beldar at 04:28 PM in Family, Film/TV/Stage | Permalink | Comments (8)

Friday, April 17, 2009

News from America guaranteed to prompt terrorist belly laughs

This makes me laugh too, sorta — but it simultaneously makes me want to weep, for my profession and my country, and for what the former has done to hamstring the latter's desperate fight against the terrorists who would destroy us if they could (first and third bracketed portions mine, others by TIME):

The CIA desire to use insects during interrogations has not previously been disclosed, according to two civil liberties experts contacted by TIME. The Bybee memorandum, which was written on August 1, 2002[, by then-Assistant Attorney General, now U.S. Circuit Judge Jay S. Bybee], described the CIA's plans for using insects this way:

"You [the CIA] would like to place [top Al Qaeda official Abu] Zubaydah in a cramped confinement box with an insect. You have informed us [the Department of Justice] that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him."

An additional sentence at the end of this paragraph is redacted in the copy made public Thursday. Later in the same memo, Bybee concludes that "an individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box." Bybee adds, however, that the interrogators should not tell Zubaydah that the insect sting "would produce death or severe pain."

One presumes that threatening to dip Zubaydah's pony-tail into an inkwell would likewise have been "torture" unless he were first warned that the "ink" was really easily washed out with ordinary shampoo.

Snark aside: Faced with the choice of putting American lives at mortal risk or putting an al Qaeda terrorist into a juvenile hissy fit, we, as a nation acting through our elected leaders' lawyers, chose the former.

And the Obama administration still calls that "torture," and apologizes for it anyway:

"Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” said [Director of National Intelligence Dennic C.] Blair in a written statement....

I suspect the al Qaeda terrorists are laughing even harder about the part about us all being "safe" now that it's April 2009 and The One has moved into the White House. But that doesn't make me want to laugh at all.

Posted by Beldar at 09:58 AM in Global War on Terror, Law (2009), Obama | Permalink | Comments (11)

Libs scrape the bottom of a stinky, stinky barrel to recycle Spitzer

Anyone who actually believes that disgraced whoremonger and cosmically comical hypocrite Eliot Spitzer has "mastered the art of the recovery," and that he's now been "rehabilitated," is simply delusional. Anyone who's trying to persuade you of that is someone with an extremely liberal agenda — and someone who's in an ill-concealed panic because they see how thin their team's bench is in New York State, ostensibly the preeminent power among the East Coast Blue States.

Nobody has ever liked Eliot Spitzer. Even coming from a state famous for producing rude people, and a profession famous for producing insufferable SOBs, Eliot Spitzer has always stood out mostly for his rudeness and insufferability. In fact, every time I see a picture of him, I'm inevitably reminded of one of my favorite extremely crude lawyer jokes — the one that begins, "Why do all lawyers wear neckties?" (I'm not going to link the answer, you'll have to Google it.)

Eliot Spitzer was never anything but a publicity-crazed jerk even before we learned of his interstate sex trafficking as "Client No. 9." He was a populist demagogue as New York's attorney general — the self-styled "Sheriff of Wall Street" never had anything but the vaguest regard for the rule of law he was sworn to uphold, and he obviously considered himself entirely above it. Finally promoted to the state's top elective office, he instantly became a scandal-plagued failure as New York's governor.

The truth is that Eliot Spitzer has no friends. But he has enemies who have enemies, and the latter don't have anyone more appealing than him to promote at the moment.

At least with the campaigns to rehabilitate Pete Rose or Darryl Strawberry, for example, those guys had genuine talent to partially offset and redeem their tragic flaws. Spitzer is 100% tragic flaw, without even the redeeming benefit of Joe Biden-style hair plugs. Does anyone seriously believe that if Spitzer were all alone in a hotel room tomorrow night — somehow assured that neither press nor law enforcement nor his long-suffering wife were watching — and "Kristen" tapped on his door again with a "90 minutes for $5k" proposition, Spitzer would slam the door in her face?

As H.L. Mencken famously wrote, "No one ever went broke underestimating the taste of the American public," and Spitzer still has the family fortune that allowed him to spend tens of thousands of dollars on callgirls without blinking an eye, so he's in no danger of going broke anyway. But I suppose the best that can be said for the "Spitzer rehabilitation campaign" is that if the Democrats and the voters of New York are stupid enough to buy into it, they deserve exactly what they get — and no one can doubt that they knew exactly what recycled garbage they're buying.

Posted by Beldar at 09:22 AM in Current Affairs, Politics (2009) | Permalink | Comments (4)

Sunday, April 12, 2009

Surviving Somali pirate captured by U.S. Navy should face death sentence under U.S. hostage-taking law

God bless the United States Navy! (H/t "Jack Dunphy" @ Patterico's.) And what a spectacular Easter blessing for the brave Captain Richard Phillips of the MV Maersk Alabama and his gallant crew and grateful family!

USS Bainbridge (DDG 96)Three of the four pirates who were holding Captain Phillips on the Alabama's lifeboat were shot dead, apparently through the exceptional marksmanship and professionalism of Navy SEAL snipers.

As to the fourth pirate — who was aboard the U.S.S. Bainbridge trying to negotiate when his co-conspirators met their just deserts — news organizations including Fox News and the Associated Press are reporting that if brought to America and prosecuted under federal law, he faces a maximum potential sentence of life imprisonment.

I'm pretty sure that's just wrong. I think that if he's brought back to the U.S. for punishment under our criminal justice system, then the surviving pirate could be, and should be, charged with and found guilty of a capital crime punishable by death.


It's true that federal laws against piracy — chief among them 18 U.S.C. § 1651 — prescribe life imprisonment as not only the maximum penalty, but the only penalty. But with respect to a federal conviction for hostage-taking, 18 U.S.C. § 1203(a) provides that "if the death of any person results, [hostage-taking] shall be punished by death or life imprisonment."

Congress' use of the word "results" means there must be a causal connection between the hostage-taking and the fatality, but it's a fairly loose one. There is no requirement that it be the defendant hostage-taker who directly inflicted any lethal injuries. And Congress could easily have limited the death penalty to situations where it was the hostage, or perhaps also law enforcement members or innocent bystanders, who were killed. But Congress didn't.

Instead, under the plain language of the statute, Congress instead chose to make the death penalty available when "the death of any person result[ed]" from the hostage-taking. Thus, even the death of one of the hostage-taker's fellow criminals satisfies the literal language of the statute.

I can't find any federal capital punishment appellate precedent directly on point under section 1203, and little precedent even from the federal trial court level. But as with "felony murder" capital punishment laws generally — under the Enmund/Tison standard — I believe that due process and other constitutional concerns are satisfied so long as the defendant is a "major participant" in the underlying felony (here, hostage-taking) and that underlying felony involved a "reckless indifference to human life" (a slam-dunk where the hostage-takers are threatening the hostage's death). There's no requirement that the prosecution show that the hostage-taking defendant had a specific mental intent to accomplish the death of any particular person when he committed the hostage-taking crime. Indeed, in contrast to some state "felony murder" capital punishment statutes, "foreseeability" of the death of the eventual decedent is not an element of this particular federal crime under section 1203(a), according to United States v. Straker, 567 F. Supp. 2d 174 (D.D.C. 2008).

CDR Francis X. Castellano, USN, the Captain of the USS Bainbridge, greets rescued MV Maersk Alabama Captain Richard Phillips (right)(Navy photo)And that should be no surprise to either pirates or decent folk: Hostage-taking, by its very nature, is a threat to kill innocents, and is likely to lead, one way or another, to the sudden and violent death of someone. It's only due to the skill of the SEALs — and, as I'm sure they'd be the first to acknowledge, the grace of God — that no one except pirates were killed or seriously injured. The pirates themselves did practically everything within their power to turn this into a fatal encounter for someone, and there's no doubt that all of them possessed sufficient murderous intentions to imbue them with capital culpability. Thus, in my opinion, even though it ultimately turned out that the only fatal shots were fired by Navy SEALs, that matters not for purposes of charging and convicting the surviving pirate of a capital offense.

I'd much rather see him swinging from the yardarms aboard the Bainbridge after a shipboard summary trial — or failing that, dropped off at Guantánamo as another of whatever the Obama Administration is now calling illegal enemy combatants — rather than afforded the due process which our federal courts accord to civilized human beings. But if the surviving pirate is indeed to be brought back to the U.S. and tried under our federal criminal law, then prosecutors at least ought to seek the most serious punishment for the most serious offense which applies to these facts under federal law.


Chances that the Obama/Holder Justice Department will agree with me? I'd say less than 1%. My only question is whether the ACLU or some NYC white-shoe law firm (purportedly acting pro bono publico) has already filed a "Maxamed Doe" habeas corpus petition for the guy.

Finally, I endorse, recommend, and enthusiastically associate myself with (i.e., wish I had written) the following authors' recent essays on piracy and how the U.S. ought to respond to it (with 21st Century speed and firepower, but 18th and 19th Century principles): Andrew C. McCarthy at the National Review Online and Bret Stephens at the Wall Street Journal.


UPDATE (Sun Apr 12 @ 7:15pm): Greyhawk at The Mudville Gazette, in the midst of some very perceptive comments about the media coverage of these events, refers to reports that the fourth and only surviving pirate might be (a) the one who was originally captured by the Maersk Alabama crewmen in re-taking the ship, (b) as young as sixteen years old, and/or (c) possibly cooperating with the Navy, rather than (as I'd heard) trying to negotiate on behalf of the other pirates. My comments about his culpability are based on the premise that he's an adult who was actively involved in plotting and executing the attempted piracy and the hostage-taking, and of course my only source for that premise is the admittedly sketchy and unreliable news reporting we've all been following. Even were he to be subjected to the traditional summary ship's-deck justice of decades' past, the sorts of circumstances suggested by Greyhawk, if they panned out, would be given due weight. I don't think this will turn out to be complicated or uncertain, and indeed, to the knowledgeable people already on the scene, these issues are almost certainly already crystal clear. But if my premises turn out to have been wrong, I of course reserve the right to reconsider my conclusions from them.

UPDATE (Sun Apr 12 @ 8:45pm): If you're wondering why I've been so churlish in not extending even a nod of appreciation to our Commander in Chief, read this paragraph tucked away near the end of the New York Times' account of the rescue:

The Defense Department twice asked Mr. Obama for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

Then tell me: When, exactly, during this entire episode was Captain Phillips' life not in imminent danger? Why did Barack Obama have to sleep on the decision whether to permit our military commanders on the scene to use their own judgment as to whether to kill pirates who had attacked an American vessel and were holding its captain hostage? If this paragraph from the NYT is correct, then even if our forces had clear shots at all of the pirates simultaneously prior to Saturday morning, they lacked Obama's permission to take them. And that is outrageous and, on the part of our nominal Commander in Chief, pathetic.

Yes, I suppose Obama could have been more pathetic — he could have refused permission altogether. But Obama obviously thinks he's our Defense Lawyer in Chief, maybe Defense Lawyer for the World. And that's not the job he's in — that's emphatically not the oath he took last January, and there are times, including this one, when it could be inconsistent with the oath he took last January. Obama's operating under a delusion that is very dangerous for America and the rest of the free world. Color me unsurprised but still disappointed.

UPDATE (Sun Apr 12 @ 10:25pm): The WaPo report leaves open the possibility that the fourth and surviving pirate was an adult (as judged at least by American law), but is equivocal about the degree of his relative culpability and cooperation:

Meanwhile, one of the pirates, estimated to be between 16 and 20 years old, asked to come aboard the Bainbridge to make a phone call. He had been stabbed in the hand during an altercation with the crew of the Maersk Alabama and also needed medical care. "He effectively gave himself up," said a senior military official. The Navy then allowed that pirate to speak with the others in hopes that he could persuade them to give up.

I disagree with the SCOTUS precedent that forbids imposition of capital sentences on Americans who were under 18 when they committed their crimes, at least when those defendants have been found as a matter of individual fact to have been sufficiently mature to justify being tried as adults. But if this individual isn't yet 18, there's no chance whatsoever that the Obama administration will seek to hold him responsible as an adult, regardless of any other facts. Whether charging this as a capital offense turns out to be justified on these particular facts for this particular individual, however, I still think the media is wrong in describing life imprisonment as the maximum possible sentence for his crimes. (And I still think treating this as an ordinary crime to be tried in our civilian courts is a mistake as well.)

UPDATE (Mon Apr 13 @ 2:45am): Someone is re-writing the first draft of history. The paragraph I quoted above from the NYT now reads (at the same URL, but with no acknowledgment of having been stealth edited)(additions in red, deletions in strikeout):

The Defense Department twice sought asked Mr. Obama’s for permission to use military force to rescue Captain Phillips, most recently late on Friday night, senior defense officials said. On Saturday morning, the president agreed to permit action, they said, but only if it appeared that the captain’s life was in imminent danger.

The other changes are minor, but the phrase "but only" has completely disappeared, which changes the emphasis significantly to make Pres. Obama seem less squeamish.

And in the Politico.com version, you can almost hear the chorus singing "Brave, Brave Sir Robin" in the background as they, umm, associate the POTUS' valor with that of the SEALs and Captain Phillips:

President Barack Obama issued a standing order to use force against pirates holding an American captain hostage — including giving a Navy commander the authority to act if he believed the captain’s life was in danger, two senior defense officials said Sunday night.

Aha. Now it's a "standing order." (¿Quien es mas macho: Barack Obama, Jack Lord, o Lloyd Bridges?) If, as the NYT insisted, Obama's permission was conditioned on the danger to Captain Phillips' life having been "imminent," Politico.com's reporters can't find the bandwidth to mention that. As for when the go-ahead was actually given, Politico.com, contra what the NYT still says, insists that "A timeline provided by the White House showed he issued the orders to use force at 8 p.m. Friday, and again at 9:20 a.m. Saturday, after new Navy forces moved on to the scene." Which would make the re-issued Saturday morning order sort of, ya know, redundant if the first order were both given on Friday night and really a "standing order." (This takes to new extremes — something under 14 hours — Jim Geraghty's frequent observation to the effect that every statement made by Barack Obama comes with an expiration date, because "standing orders" now have to be repeated at least twice a day.)

Keep in mind, friends and neighbors, that this was a five-day standoff. Whether we credit the NYT's version of events or Politico.com's, our military apparently only had shoot-to-kill authority for something under the last 24 hours of it. And that, I repeat, is simply pathetic.

UPDATE (Tue Apr 14 @ 4:35am): I have no basis to dispute or second-guess these statements from the Secretary of Defense, made on the record on Monday, as reported in the WaPo:

Defense Secretary Robert M. Gates said Monday that the Defense Department twice requested the authority to use deadly force because two groups of Special Operations Forces were involved in the operation. Each required its own sanction. He said that "the approval was given virtually immediately in both cases."

A senior administration official said that the president did not deny any operational request made to him and that he knew the broad outlines of the operation that the Navy had planned. The official said that "our people tried a variety of ways to resolve the situation peacefully, and the guidance all along was that the overriding interest was the captain's life."

Gates said the four pirates involved in taking Phillips hostage were 17 to 19 years old — "untrained teenagers with heavy weapons." The pirate whom Reza wounded in the hand asked the USS Bainbridge for medical attention, effectively surrendering.

That all the pirates were "teenagers" is sad, but not very exculpatory. I'd bet a large sum of money that each of them considered himself an adult before undertaking this piracy, whatever Western law might say for the ones not yet 18. They were engaged in a violent and dangerous crime using military weapons; the three who were slain certainly deserved what they got, but I'll reserve further judgment on the fourth for reasons I've explained earlier in this post or in comments below.

I'm still troubled and unsatisfied by the notion that it takes so many layers of approval, extending to the office of the POTUS, to provide our military forces on the scene — who were, after all, there patrolling for pirates whose routine method of operation is to seize and threaten hostages with execution — the very basic authority to kill any pirate whenever so doing will secure the release of a hostage. If the regular officers and crew of the Navy vessels in the area, including the Bainbridge, didn't already have the authority to do that, they ought not be there. But that is a systemic criticism, and one that may be leveled against American civilian leaders of both parties going back to at least the Bush-41 administration, when lawyers and concerns for civilian-style legalities began to infect every aspect of our efforts to fight both conventional military enemies and terrorists.

Bottom line: If Secretary Gates was being candid and thorough, that puts Obama in a better light than I gave him credit for earlier in this post. If Gates is engaging in spin, I have no way to tell that — and neither does anyone else, absent unfettered access and complete cooperation from Navy personnel who were on the scene but are not about to publicly second-guess the SecDef or the POTUS, whoever holds those offices. The possibility that Gates is being candid and the possibility that he's engaged in spin are not mutually exclusive. But in any event, with our ship recovered and Captain Phillips rescued, and with rare near-unanimity among Americans of every political stripe in celebrating the competency of our military forces and their performance, I'm not going to spend any more energy second-guessing Obama's personal performance on this episode.

Posted by Beldar at 05:11 PM in Current Affairs, Global War on Terror, Law (2009), Obama, SCOTUS & federal courts | Permalink | Comments (13)

Friday, April 10, 2009

The world will little note, nor long remember, the angle of Obama's bow from the waist to King Abdullah; but ...

I'm in a particularly crusty mood at the moment, and this post may draw disagreement from many or maybe even most of those who read it. That's okay. I've just been working up to a rant, and I have to let it out.


In March 1936, my father was a 14-year-old in rural Lamesa, Texas, and he was fairly preoccupied with working toward the rank of Eagle Scout. Thus, he may, or he may not, have paid any attention to the national and international news of that month. The Hoover Dam was completed, and that certainly was a good and noteworthy demonstration of American engineering prowess. On St. Patrick's Day, they had a terrible flood in Pittsburgh. Daytona Beach hosted the first-ever American stock car race. Manhattan's Metropolitan Museum of Art paid an estimated $300,000 — a shocking sum — for Titian's "Venus and the Lute Player." And TIME magazine had already observed with respect to the upcoming presidential election that the incumbent administration of Pres. Franklin D. Roosevelt was

approach[ing] the November election in a high state of hope. The head of the firm, despite sporadic booing, remains extraordinarily popular with customers who must be resold. His health holds up as well as his glowing confidence. His campaign will be simple: "Things are getting better & better. We planned it that way. Let's have four years more of Democratic Recovery." The Party debt has been cleared away and millions of voters living on government bounty will not be allowed to forget who feeds them. And, above all, the Republicans have no one candidate now in sight who can fire the country with personal enthusiasm.

Across the Atlantic, the Royal Air Force conducted the first test-flight of the Spitfire Type 300. King Edward VIII, having succeeded King George V in January of that year, was deeply in love with Wallis Simpson — a not-quite-yet divorced American — but was still a few months away from his decision to abdicate the throne to marry her. He drew mixed press reviews from his participation on behalf of British and Commonwealth manufacturers at the British Industries Fair outside London: some thought he had compromised his dignity by pulling up his pants leg to display, and roundly endorse, his "ingenious 'Munrospun Sock[,]' into which [was] woven its own garter."

I'm sure if there had been an internet in March 1936, English-language bloggers would have blogged about all of these things. Would my dad have been among them? Not likely, unless there had also been a blogging merit badge available for him to earn.

But with the hindsight available a mere three and a half years later, it would be crystal clear to everyone in the world that the most important event of March 1936 had occurred on the seventh day of that month when — in clear and unambiguous violation of the 1919 Treaty of Versailles — German military forces suddenly reoccupied the Rhineland. Either France or Britain could have immediately and decisively crushed the German forces — not only throwing them out of the Rhineland but almost certainly causing, as a consequence, the toppling of the German government led by Chancellor and Führer Adolf Hitler. Either nation had ample military force to enforce the Treaty at minimal military risk, but neither had the political spine to do so.

There and then, the civilized world forfeited its last clear chance to prevent, at minimal cost and with unquestionable righteousness, the horror that became World War Two. By the time my father enrolled at the University of Texas in September 1941, most of the world was already at war, and he entered an accelerated NROTC program designed to churn out naval officers to fight and, if necessary, to die on the oceans bordering both of America's shores.


Franken_diaper Perhaps when we all have the benefit of similar hindsight, you will pardon me, friends and neighbors, that I have not already blogged this week about whether Barack Obama did or did not bow to the King of Saudi Arabia. (He did, which was stupid and beneath the dignity of the POTUS, but at least he's had the minimal sense to brazenly lie about it now.) And maybe you'll forgive me in a few years, gentle readers, for failing to obsess during the past week or so over the outcome of the close special election in New York's 20th Congressional District, or the considerably more distressing probable last gasps of Norm Coleman's efforts to keep (it pains me to even type these words) Al Franken from taking one of Minnesota's seats in the U.S. Senate. In the long run and the big picture, even in a Senate teetering on the edge of a filibuster-proof majority, Al Franken is going to be no more consequential than Edward VIII's socks, either with or without garters.

But in three or four or six years, when a North Korean missile drops a nuke somewhere on Japan, or perhaps in the vicinity of Anchorage — or, even assuming no continued technical progress by the Norks, they simply hand over a very, very dirty bomb to al Qaeda to put into a container bound for the Port of Houston or wherever — then the whole world will know that it was this past ten days in which Barack Obama proved himself as gutless, indecisive, and naïve as the Brits and the French were in March 1936.

Those of you who were alive and aware in 1986 surely remember how Ronald Reagan reacted to Mohamar Khadaffi's "Line of Death" in the Gulf of Sidra. Even John Kennedy reacted forcefully to a threat of nuclear-tipped missiles in Cuba in 1962 (although he himself had invited that particular bit of Soviet adventurism by his weak-kneed showing at the 1961 Vienna Summit).

So what did Barack Obama do about North Korea's missile launch, made in defiance of the United Nations and world opinion, made to intimidate and threaten our staunch allies Japan and South Korea, and made to humiliate the United States?

He toured Europe. Where he blamed America first for all the world's problems, winning applause from reflexively anti-American crowds and not a damned thing of value more from our European allies.

Then he came home and cut production of the preeminent air superiority fighter of the first half of the 21st Century.

Yes, in the last 10 days, Obama has answered the only question remaining about his administration: We're now sure beyond any doubt that it will be not just a domestic fiscal catastrophe, but a foreign policy/national security catastrophe as well.

Barack Obama is on track to become the worst president in American history, and I frankly can't see any way that can be avoided any more.

Posted by Beldar at 04:24 AM in Current Affairs, Global War on Terror, History, Obama, Politics (2009), Weblogs | Permalink | Comments (15)

Monday, April 06, 2009

"I don’t know what the term is in Austrian"

One might think a degree in political science (with a specialization in international relations) from Columbia University, followed by service as chair of the European Affairs subcommittee of the Senate Foreign Affairs Committee, might have given Barack Obama some clue as to the language spoken by the friendly people of Austria. But if so, one would then be disappointed (emphasis added):

At a news conference afterward, Obama said his debut on the international stage had convinced him that “political interaction in Europe is not that different from the United States Senate,” where he served before entering the White House.

“There’s a lot of — I don’t know what the term is in Austrian — wheeling and dealing, and people are pursuing their interests, and everybody has their own particular issues and their own particular politics,” he said in response to an Austrian reporter’s question.

Actually, I believe that the word "idiot" has the same meaning in both English and Austrian German.


But seriously, folks. Do I believe that Barack Obama genuinely doesn't know that they speak German in Austria, and that he'd make this same mistake in an unstressed setting with a moment to reflect upon it? No, I don't believe that. This was a silly and innocent mistake — like the "57 states" comment during the campaign — and any human being, no matter how well educated and genuinely knowledgeable, will be caught making this sort of mistake from time to time if subjected to constant and intense scrutiny.

I grew sick to death of those who seized upon every verbal misstep of George W. Bush's or Sarah Palin's and treated those missteps as if they were meaningful, as if they were worthy of anything more than mild mockery for purposes of amusement. They weren't. This isn't either.

No, my problem with Barack Obama isn't that he's stupid. It's that neither he, nor anyone else, is as smart as he thinks he is.

Posted by Beldar at 04:26 AM in Obama, Politics (2009) | Permalink | Comments (16)

Thursday, April 02, 2009

Today's spam email header that's least likely to pique my further interest

"It will be hard for women to resist the temptation not to sleep with you."

Posted by Beldar at 05:48 PM in Humor, Web/Tech | Permalink | Comments (4)

Wednesday, April 01, 2009

Real "Kansas values" from candidate Rob Wasinger

I was grousing yesterday about the Obama campaign's pretense that its candidate was imbued with "Kansas values," so it's perhaps karma, or perhaps just happy coincidence, that I received an email from a trusted blogospheric friend today directing me to a post on Redstate.com from a real Kansan who's writing about what I believe to be real Kansas values. The writer is Rob Wasinger, a former staffer for Sen. Sam Brownback, and he's running for Congress from the First District of Kansas.

Rob has a Harvard economics degree to complement a public school education from Kansas, but his writing is blessedly free of existential angst. A sample, to perhaps induce you to follow the links and read the whole thing:

We have two simple choices. We can choose prosperity for Washington, DC or we can choose prosperity for the rest of America. I will always choose Kansas and America.

It's early for the 2010 election season, but Rob's already gathered endorsements from former Sen. Fred Thompson and a variety of prominent Kansans. I wish him much luck in his campaign.

Posted by Beldar at 06:55 PM in Politics (2009) | Permalink | Comments (0)